Citation Nr: 1308071 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 07-04 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for right carpal tunnel syndrome, to include as secondary to a service-connected disability. 2. Entitlement to service connection for right ulnar neuropathy, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2011, the Veteran submitted additional evidence pertinent to his appeal, along with a waiver of review by the RO. Accordingly, appellate adjudication may proceed. The Veteran's appeal was remanded by the Board in July 2011 to obtain outstanding treatment records, to obtain a VA opinion, and to readjudicate the appeal. Outstanding VA treatment records were obtained in September 2011; the Veteran did not respond to a September 2011 letter requesting outstanding treatment records or the authorization to obtain them. A VA opinion was obtained in October 2011 from a VA examiner. The appeal was readjudicated in the July 2012 supplemental statement of the case. Further, in September 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in October 2012. In October 2012, the Board informed the Veteran and his representative that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. Although the Veteran did not respond, in December 2012 his representative acknowledged the VHA opinion and submitted further written argument in support of his appeal. Accordingly, the Board will proceed with the consideration of his case. In light of the foregoing, the Board finds that there has been substantial compliance with the directives of the July 2011 Remand in this case, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). At the May 2010 VA heart examination and in a November 2012 submission, the Veteran asserted that since June 1995 he had been precluded from substantially gainful employment due to his service-connected PTSD, his back disability, and the wrist and elbow disabilities for which service connection was denied elsewhere in this decision. Further, private April 2010 and October 2010 VA opinions conclude that the Veteran's chronic obstructive pulmonary disease and his PTSD both make him unemployable, only the Veteran's PTSD has been adjudicated as service-connected. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the issue of entitlement to TDIU has been raised by the record, but not adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A November 1967 service treatment record notes the Veteran's report of injuring his right elbow, and a diagnosis of right arm triceps strain; no further reports of right elbow pain were made during service, and no right elbow or wrist or arm complaints were made or clinical abnormalities found on examination on service separation in April 1969. 2. The evidence of record does not relate the Veteran's currently diagnosed right carpal tunnel syndrome or his right ulnar neuropathy directly to his military service or proximately to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right carpal tunnel syndrome have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for right ulnar neuropathy have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). April 2005 and July 2012 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was also notified of regulations pertinent to the establishment of an effective date and of the disability rating in a March 2006 letter. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's May 2002 Social Security Administration (SSA) disability determination did not note that the Veteran had a right upper extremity condition or find him disabled on that basis; as such, the relevant medical records considered in making that decision were not requested from SSA. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). VA examinations were conducted in August 2005, September 2008, and May 2010; VA opinions were obtained in October 2011 and October 2012. These examinations and opinions were adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Pertinent service treatment records include a November 1967 record wherein the Veteran reported injuring his right elbow; the impression was right arm triceps strain. However, no further reports of right elbow pain were made during service, and no right elbow or wrist or arm complaints were made or clinical abnormalities found on examination on service separation in April 1969. His service personnel records and other information obtained from the Veteran's service department reflect that the Veteran had in-country service in Vietnam; on that basis, exposure to herbicides is presumed. The evidence does not reflect that the Veteran reported or otherwise sought treatment for right upper extremity neurologic symptoms until 2005. Private treatment records reflect that a February 2005 electromyelogram (EMG) showed right ulnar neuropathy and right carpal tunnel syndrome. An April 2005 follow-up treatment record noted that the Veteran continued to have right hand weakness and cramping; surgery for release of the median and/or ulnar nerves was discussed. At the August 2005 VA joints examination, the Veteran reported right wrist pain, as well as numbness, tingling, and decreased strength in his right wrist and hand, all of which began in 1980 after he suffered some trauma while changing a car tire; prior to that, he was without complaint. A November 2006 private treatment record reflects the Veteran's report of finger and thumb numbness and weakness. A December 2006 EMG shows bilateral carpal tunnel syndrome, worse in the right upper extremity, and right ulnar neuropathy at the elbow. A private surgeon conducted the Veteran's right carpal tunnel release and anterior subcutaneous ulnar nerve transposition of the right elbow in March 2007. The operative report reflects that the Veteran reported having pain and numbness plus weakness in the right hand for some time, and that history, physical, and electrophysiological testing were consistent with the diagnoses of right cubital tunnel syndrome and right carpal tunnel syndrome. VA treatment records reflect that right carpal tunnel syndrome, status post wrist surgery, was added to the conditions listed on the Veteran's problem list in January 2010. However, VA treatment records beginning in January 2007 note that the Veteran reported right arm tingling and/or a pinched nerve feeling in the right hand. The September 2008 VA peripheral nerves examination noted that the Veteran's nerve conduction studies showed moderately severe right carpal tunnel syndrome with no evidence of diffuse neuropathy. The May 2010 VA peripheral nerves examination report showed normal neurologic, motor, and sensory clinical findings in the right upper extremity on testing. The Veteran does not assert, and the record does not reflect, that his diagnosed right carpal tunnel syndrome or his right ulnar neuropathy is related directly to his military service. These conditions were first diagnosed at the February 2005 EMG, and the only earlier evidence that the Veteran experienced symptomatology before this time was his report at the August 2005 VA joints examination that his right wrist and hand pain, numbness, tingling, and decreased strength began in 1980. Further, the evidence does not relate the Veteran's right carpal tunnel syndrome or his right ulnar neuropathy a service-connected disability. Three nexus opinions as to this medical question are of record, and each concludes that the disabilities are not related to the Veteran's service-connected lumbar spine disability or another service-connected disability. The August 2005 VA examiner concluded that the Veteran's right ulnar neuropathy and right carpal tunnel syndrome were not caused by or the result of his service-connected chronic lower back pain. Similarly, the October 2011 VA examiner concluded that the Veteran's right carpal tunnel syndrome and right ulnar neuropathy were less likely than not proximately due to or the result of a service-connected disability. Carpal tunnel syndrome and ulnar neuropathy are focal conditions that are directly due to the physical compression of the nerves - for the carpal tunnel, the flexor retinaculum in the wrist, and for the ulnar neuropathy, the ulnar nerve near the medial epicondyle of the elbow. Compression syndromes are due to prior scarring, trauma, arthritis, or repetitive motion injuries, but not due to metabolic conditions like the Veteran's service-connected diabetes mellitus, which would cause a systemic peripheral neuropathy in a predicable fashion affecting the bilateral extremities. [The Veteran's claim for service connection for diabetic neuropathy of the upper extremities was previously denied and not appealed.] Finally, the October 2012 VHA specialist concluded that the Veteran's right carpal tunnel syndrome and/or right ulnar neuropathy were less likely as not related to the Veteran's presumed herbicide exposure. Noting that the diagnoses of right carpal tunnel syndrome and right ulnar neuropathy were made in August 2005, long after the Veteran was separated from active service, the examiner pointed out that the Veteran's fist complaints occurred in 1980 after he injured his right upper extremity changing a tire. Further, both carpal tunnel syndrome and ulnar neuropathy are compressive or entrapment neuropathies, and to his knowledge, herbicides had not been found in any way to be related to compressive or entrapment neuropathies. The October 2012 VHA specialist also concluded that it was less likely as not that the Veteran's right carpal tunnel syndrome and/or right ulnar neuropathy were caused by or aggravated by his service-connected lumbosacral strain, diabetes mellitus, posttraumatic stress disorder (PTSD), coronary artery disease, or peripheral neuropathy of the lower extremities. Noting that none of the listed service-connected disabilities had any connection or play a part in the development of focal compressive/entrapment neuropathies like carpal tunnel syndrome or ulnar nerve neuropathy, the examiner specifically and additionally noted that although diabetes is a risk factor in the development of compressive/entrapment neuropathies, it was not known to directly cause them, and there were other risk factors which could have caused the carpal tunnel syndrome such as genetic predisposition and workplace factors, including situations where repetitive hand/wrist use occurred. Ultimately, the evidence does not establish a nexus between the Veteran's currently diagnosed right carpal tunnel syndrome and/or right ulnar neuropathy and his military service or any of his service-connected disabilities. While the Veteran's fervent belief as to such a relationship has been considered, the evidence establishes a non-service related event - the 1980 car maintenance injury - as a date of onset, and he lacks the medical experience to provide a nexus opinion concerning a proximate relationship between the claimed conditions and his service-connected disabilities. See Nieves-Rodriguez, 22 Vet. App. at 304 (holding that threshold considerations in determining the value of a medical opinion include whether the person opining is suitably qualified). On this basis, service-connection for right carpal tunnel syndrome and/or right ulnar neuropathy must be denied. The preponderance of the evidence is against the claims for service connection for right carpal tunnel syndrome and right ulnar neuropathy. There is no doubt to be resolved, and service connection is not warranted for either disability. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right carpal tunnel syndrome is denied. Entitlement to service connection for right ulnar neuropathy is denied. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs